According to Muslim law, Marriage/Nikah is a contract signifies a permanent relationship, based on mutual consent of the parties, and to undertake the followings Rights and Duties arising out of the contract.Marriage is the matrimonial relation or wedlock which permits the sexual activities between the male and the female, having an objective for the procreation of the child, family and satisfying other basic desire of human for the welfare of the society. These objectives are considered to be fundamental entities for the development of the human race.Like other religions in India, Islam is a strong advocate of marriage, the only way to indulge in sexual intercourse between a woman and a man is through marriage. It is said that there is no celibacy in Islam.
The term “Nikah” literally means the “union of sexes” or different form of sex relationship based on certain conditions. Prior to the emergence of Islam, the laws were discriminatory in nature and always favourable to men, various forms of marriage have existed and divorce was easy for men, the condition of women was worse then of animals, they were treated like chattel and no rights were given to them, hence they were absolutely dependent. It was Prophet Mohammad, who observed the need for the drastic change and to provide women with legal status. He placed women on equal footing with men in terms of all legal powers and function, almost perfect equality provided to women.
Under Muslim law, marriage was considered a civil contract, the virtue of this the women does not lose their individuality and considered to be separate identity and remains a distinct member of the community, her existence not be taken over by the husband, no power given to over her person or property beyond what the law says, moreover she is the exclusive owner of her own Rights. Even after the marriage, she has the right to transfer or dissolve her property in anyways she wants without the approval of her husband, Muslim law also confers over the woman to enter into the contract with her husband, which are binding in nature and in case of non-performance of a promise, she has the right to file a suit against her husband in the court of law if required. This position is given to women by the injunctions of the Quran.
Definition of Mariage[Nikah]
In Baillie’s Digest, ‘marriage has been defined as a contract for the purpose of legalising sexual intercourse, and procreation of a child’.
In Hedaya,‘marriage is defined as Nikah in its primitive sense means carnal conjunction’. And in terms of the law, it ponders a particular contract for legalising generations.Ashabah says: ‘marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman’.
According to Abdur Rahim: ‘The Mohammedan jurists regard the institution of marriage as partaking both of the nature of ibadat or devotional acts and muamalat or dealings among men'.
Prophet said:‘ marriage is my sunna and those who do not follow this way of life are not my followers, and that there is no monkery in Islam’.
According to Justice Mahmood: ‘marriage among Mohammedan is not a sacrament, but purely a civil contract’.
In a leading case of Shoharat Singh V. Jafri Begum. Held that Nikah under Muslim law is a religious ceremony. Marriage is regarded as the basis of society by Islam, it is a contract but also a sacrosanct covenant. The aim of the institution of the marriage to avoid the misdeed of the humans and protect society from foulness and unchastity.
Nature of Marriage under Muslim law
Different opinions of jurists are found regarding the nature of marriage under Muslim law, some jurists upheld that Muslim marriage is purely a civil contract while others say that it is a religious sacrament in nature. The different notions are provided to prove the nature of marriage, the jurists who are in the favour that Muslim marriage is a civil contract and not a sacrament based on the observation, that marriage under Muslim law, resemble the similar characteristics as of a contract. For example
- In marriage, there is a proposal (Ijab) from one party and acceptance (Qubul) from the other so in the contract, moreover, there can be no marriage if any of the parties consent is not appropriately obtained.
- As in contract, entered into by guardian, on attaining majority, the same contract can be ratified or can be set aside by the minor on attaining the age of puberty, same can be done in the Muslim marriage contract.
- In contract, parties can enter into any postnuptial or antenuptial agreement which is enforceable by law, same can be done in the Muslim marriage contract, provided that it should not be opposed to the public policy of Islam and must be reasonable.
The resemblance of a marriage contract with the contract of sale as drawn out by Justice Mahmood in a leading case of Abdul Kadir V. Salima. And by Justice Mitter in Subrunnisa’s case that; “ Marriage among the Mohammedans is not a sacrament, but purely a civil contract, though the marriage is solemnized generally with the recitation of some verses from Holy Quran, it does not tender it to be a religious sacrament and also not prescribe any service peculiar to occasion. The validity and operation of both are to be governed by the stage of providing offer and acceptance among the parties with free consent coupled with sufficient witnesses, and also upon the certain restriction and conditions imposed according to the circumstance of the case.Thus, we see that the similarity of Muslim marriage to a contract are so convinced that some jurist has treated it entirely as a civil contract.
Another view, that Muslim marriage is not purely a contract but religious sacrament also, a however sacramental view can be regarded as orthodox, but it has its significance drawn out by the judiciary. In a leading case of Anis begum V. Mohammad Istafa, C.J Shah Sulaiman has tried to bring forth the balanced view regarding the nature of Muslim marriage.Taking religious aspect into account Muslim marriage is an ibadat(devotional act), also the Prophet is reported to have said that marriage is essential for every physically fit Muslim who could afford it. Moreover, some of the tradition may also depict its religious sacramental nature, like Mohammad Ali says ‘ that contract of marriage is sanctified by a sermon before the partied announce their acceptance. The Khutbah or sermon at the marriage helps to gain the publicity of marriage and sanctifying the marriage contract and informing the parties of their responsibilities
After observing minutely, we found that besides having the same characteristic with the contract, also have some difference between the two. For example
- In case some contract future event agreement will also be enforceable, but in case of marriage contact, no contingent take place.
- The contract is for some specific period of time, but this condition does not apply to the marriage contract. (muta marriage is an exception to this).
One may conclude the nature of Muslim marriage that marriage in Islam neither purely a civil contract nor as a sacrament, it is devoid of none but the blending of two.
Object of Marriage
Before the advent of Islam, there were so many unethical practices performed among Arab, traditions like buying of girl form her parents by paying a sum of money, divorce given by the husband to their wives was so easy, temporary marriages performed on a large scale and marriage with two real sisters simultaneously. So in order to stop these immoral act, the glossary of Tarmizi sets out five objects of marriage. These are-
- Restraint of sexual passion
- Increase of the family
- Performing domestic life practices
- Follow the responsibility and give support and care to wife and children, and
- Give the attitude of high moral to the children.
Prophet Said; ‘Men marry women for their piety, or their property, or their beauty, but you should marry for piety (Tarmizi)’.The purpose of Marriage is for continuance generation of human race and attainment of chastity, mutual love, affection and peace.
Kinds of Marriage
There are three kinds of marriage under Sunni law, these are-
- valid (Sahih)– a marriage which is neither void nor invalid is deemed to be known as a valid marriage, in short, the marriage which has no legal fault and not opposed to the public policy of Islam claimed to be a valid or Sahih marriage.
- Void (Batil)- a marriage which has no legal enforceability is called void marriage, it is void form ab-intion. Under this marriage, parties are suffering from an absolute legal disability.
- Irregular or valid marriage (Fasid)– a marriage when contracted by the parties are suffering from legal disability at that time. But can be removed and the marriage becomes valid, hence irregular marriage is not a void marriage, can be converted into valid one if the legal hindrance once removed.
Some ground which makes marriage irregular-
- A marriage contracted without proper witnesses
- Mariage with a fifth wife
- Marriage during pilgrimage
- Marriage with any non-muslim
- Marriage with a woman going under iddat.
According to Shia law, marriage may only be either valid and void, there is no concept of irregular marriage under Shia law.
Condition for a valid marriage
The marriage to be claimed as valid must possed the following conditions-
- There must have been a proposal by one party and acceptance of the same by the other party. And this process of giving proposal and acceptance must take place in one meeting, under the supervision of two witnesses, which are considered to be of sound mind and adult Muslims. But under Shia law, no witnesses are required.
- The consent of the parties is free, it should not be obtained by under influence, coercion and misrepresentation.
- The parties are competent to each other, they should be of sound mind, major, capable to give consent and in case of minor it should be done through their guardians.
- No legal disabilities should be there, like consanguinity, affinity, fosterage and polyandry.
Essentials of marriage
It was held in the case of Jogu Bibi V. Mesal Shaikh, that neither writing nor any religious ceremony is essential but however the Islam considered the essentials of marriage under three heads, which are as follows
1. Proposal and Acceptance one party contracting for marriage constituted by Ijab-o-qabool, which means declaration and acceptance. One party have to table the offer and other parties have to accept the same then only marriage completes.Under Muslim law, it is necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage agreement at the same meeting where the proposal and acceptance were given and this should be witnessed by two adults Muslims. It is customary to send relation of the women to insider her house accompanied by two witnesses to hear that the woman authorize the relation to agree to the marriage on her behalf for the dower money of by the husband, as women are in Pardah.The relation has to explain everything in detailed about the dower proposed by the husband when the woman says yes and signifies her consent, then that three-person came out and the husband and that three persons are placed before the Qazi. Qazi asked the boy whether he agrees to marry the girl on the specified dower. He says yes then the relation, who went inside the woman house tell the Qazi, he’s the agent of the girl. Qazi asks the relation whether the girl agrees to marry on payment of the specified dower, the relation says yes, during this process the witness is there so that if Qazi has any doubt he can refer to the witnesses. When both sides have said yes then Qazi read the portion of the Quran and the marriage has solemnized.
Under Sunni law, the proposal and acceptance must be made in the presence of two males or one male and two female witnesses, who are sound and adult Muslims. Absence of witnesses does not render marriage void but irregular.But in Shia law witnesses are not necessary at the time of marriage.
2. Competent PartiesThe parties, who contracting marriage must have the capacity of entering into a contract, in other words, they should be of sound mind and must know the consequences of the act and the binding nature of the contract
3. No legal disabilityLegal disability means the existence of certain conditions under which the marriage can not be allowed. These prohibitions are classified under Four heads-
1. Absolute prohibition- this incapacity to marry arise from, consanguinity, affinity and fosterage.Consanguinity(Qurabat) means blood relationships and bars a man from marrying to his mother or grandmother how high soever, his daughter or granddaughter how high soever, his sister whether full consanguine or uterine(mother is common but the father is different), his niece or great-niece how high soever and his aunt or great aunt how high soever.Affinity(Mushaarat) a man is prohibited to marry his wife’s mother or grandmother how high soever, his wife’s daughter or granddaughter how high soever, wife of his father or paternal grandfather how high soever and wife of his son or son’s son or daughter’s son how high soever.Fosterage(Riza) when the child of two years of age has been feed by a woman other than its own mother, the woman is called the foster mother of the child. A man may not marry his foster mother or her daughter.But under Sunni law, there are some exceptions to the general rule of prohibition regarding fosterage.
2. Relative prohibition- this capacity to marry arises from the cases which render the marriage invalid only as long as the cause and circumstances which creates the hindrance exists. Once the hindrance or legal bar revoked the marriage validity can be upheld. For example, a man is prohibited from marrying more than fourth wives, his marriage with the fifth wife invalid until he gives divorce to any of them. Following are the cases of relative prohibition:
- Unlawful conjunction means marrying two women so related each other by the reason of consanguinity, affinity and fosterage, this is because to avoid confusion of kindred(dual relationship).
- Polygamy means Plurality of wives or marrying a fifth wife.
- Absence of proper witnesses- there must be two male or one male and two female witnesses there, who are sound mind and adult Muslims.
- A difference of religion means a Sunni male can marry a Kitabia(women who believe in a revealed religion possessing a divine book like Islam) but can not marry an idolatress and fire worshiper, marring with them can render the marriage irregular, but in case of Shia law, it is considered to be void.
- Women undergoing Iddat means a person can not marry a woman, who is performing the course under iddat, iddat is a period during which a woman is prohibited to marry again after the dissolution of first marriage. The object of iddat is to ascertain the pregnancy of the wife so as to avoid the confusion of parentage.
3. Prohibitive Prohibition means the inability of marring arises from the case of polyandry and a Muslim woman marrying a non-muslim. Polyandry means having more than one husband, polyandry is forbidden in Muslim law women can not marry twice, when her first marriage already subsisting, by doing the same women is liable for the offence of section 494 under Indan Penal Code, and the child born out from this relation considered to be illegitimate.
4. Directory Prohibition this case may arise from the circumstances where the-
- Marry a woman enceinte (woman who is already pregnant by her former husband)
- Prohibition by divorce ( when the marriage is dissolved by the pronouncements of divorce three times, the reunion is prohibited)
- Marriage during Pilgrimage (Shia law consider this kind of marriage to be void, but for Sunni, it considered to be an irregular one)
- Marriage with a sick man (a person suffering from the disease which is in future likely to be fatally considered invalid)
Restitution of conjugal rights
In every religion, there are some remedies available, if the matrimonial relation or the wedlock is not up to the par. It an indigenous part in every religion like Muslim, Christian, jews and Parsi. The marriage under Muslim law considers to be a contract, and to fill a suit for restitution of conjugal right is basically for the performance of a certain condition, provided in the terms of a contract of marriage.In India, the Courts recognised the right to restitution of conjugal rights, in a leading case of Moonshee Buzloor Ruheem V. Shumsoonissa begum, upheld that where a wife without lawful justification ceases to cohabit with her husband, then he can fill the suit for the restitution of conjugal rights.Its a rule of law that the decree of restitution of conjugal rights obtained by the husband against the wife, can not debar her’s right to claim maintenance.
However, the suit filed by the husband can be avoided by the wife on proving certain ground:
- The validity of marriage- valid defence for the restitution of conjugal rights, as one has to prove that his marriage is valid then only the right to restitution of conjugal rights can be invoked. And by denying that the marriage is no valid wife can absolve from the liability of suit.
- Legal cruelty- cour has a lenient attitude in favours of women, and law recognised the circumstance which instigates the wife and gives a reason for justification in refusing to live with her husband. To prove this fact it is essential to prove that there is a reasonable apprehension of violence by the husband or any act of such nature which endanger her personal health or safety.
- Non- payment of prompt dower- wife may plead a defence that her refusal to perform conjugal duties because of that fact that she has been not paid a prompt dower when demanded.
- Lian and Zihar- when it is improper of immoral for a husband and wife to cohabit, a suit for restitution would have failed.
- Repuidataion of marriage- by repudiating the contract, the wife can absolve herself for the suit for restitution
- Impotency of husband- this may also serve the good defence, if the husband found to be impotent, suit for restitution of conjugal rights can not be invoked.
Muta marriage in Muslim Law
In pre-Islamic Arab, the tradition was common during long travel that certain women entertained men in their tents, with the implied condition of that, any of the parties have no right over each other. The women could dismiss the man any time as per their wish. There is freedom among both the sides to terminate the relationship at any point of time. The issue born out by this relation belongs to the woman. Muta is a modified form of this though it differs in two aspects-
(i) period/time is to be fixed while contacting muta (ii) Dower must be fixed in the contract
Meaning & Nature of Muta marriage
The term ‘Muta’ means ‘enjoyment or use’, it is basically a form of temporary marriage recognised by only Ithna a sharia school of Shia Muslim law but it is not recognized under Sunni law. Some jurists render muta as a marriage for pleasure. Muslim Law
(i) period must be fixed – there should fixed period mention, without doing the same render the permanent marriage.
(ii) dower specified- when the dower specified and period fixed the muta marriage is valid, but in case of no specified dower, muta marriage is void.
(iii) proper conduct- proper conduct by the parties, declaration, acceptance and proposal, parties should enter into a contract with free consent and must have a sound mind, capable of being knowing the nature of the act.When the muta is contracted for the period of the unspecified term, or the parties remain together after therm of expiry, there is a presumption that the marriage is extended, and if continue to till together till the death muta is converted into nikah it was held in the case of Shahzada Qanunm V. Fakher Jahan. Muslim Law
Differences between Muta & Nikah
(i) the period of Mute marriage is temporary whereas in Nikah parties contracted for a lifetime.
(ii) Muta marriage is recognised by only Ithna Asharia (Shia School), but Nikah By both the Sects.
(iii) Muta marriage does not confer any rights of inheritance over the parties, but in Nikah such rights are there.
(iv) In Muta marriage If consummated, received the full amount of dower otherwise half amount given but in case of Nikah If consummated or not, always given the full amount of dower
To stop the immoral activities against the women and providing them legal status, Prophet Mohammed inculcates Marriage, is an institution which ordained for the protection of society and in order that human being may guard themselves against foulness and unchastity. However in Muslim law, marriage is considered to be a contract and resembles similar charter with it, on the contrary, it has some religious sacrament also, so saying marriage purely a contract is wrong, its a blend of both, contract and religious sacrament. Marriage creates an obligation, legal rights and duties among the parties, which must be adhered by the parties, and in case if one of the party breaches, then the other may have the right to demand the specific performance.
1.Hedaya P. 25
2. Abdur Rahim: Principles of Mohammadan Jurisprudence Lahore Edn. P 327
3. (1915) 17 BOMLR 13
4. (1886) 8 All 149
5. AIR 1934 Cal 693
6. (1933) 55 APP 743
7. (1936) 63 Cal 415
8. (1967) 1 MIA 551
9. AIR 1953 Hyd.6
BY- Akash Ranjan Goswami | Aligarh Muslim University